United States District Court, D. South Carolina, Columbia Division
ORDER GRANTING PETITIONER'S HAGUE CONVENTION
PETITION AND REQUIRING THE RETURN OF THE CHILD TO
C. Coggins, Jr., United States District Judge
matter was initiated by a Verified Petition filed by
Petitioner Jose Luis Vite-Cruz ("Father") under the
Convention on the Civil Aspects of International Child
Abduction (the "Hague Convention") and the
International Child Abduction Remedies Act
("ICARA"), 22 U.S.C. §§ 9001-11, formerly
cited as 42 U.S.C. §§ 11601-11. ECF No. 1.
considered the testimony of the witnesses, stipulations of
the parties, exhibits and testimony presented at trial, and
arguments of counsel, the Court hereby
GRANTS Father's Hague Convention
Petition and hereby ORDERS the immediate
return of A.V., a twelve-year-old child (the
"Child"), to his habitual residence of Hidalgo,
Mexico, and his Father. To this end, the Court issues the
following findings of fact and conclusions of law under
Fed.R.Civ.P. 52. To the extent that any findings of fact
constitute conclusions of law, or vice-versa, they shall be
Hague Convention is intended "'to protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual
residence.'" Maxwell v. Maxwell, 588 F.3d
245, 250 (4th Cir. 2009) (quoting Hague Convention pmbl.).
Importantly, Courts construe the Hague Convention so as to
deter parents from unilaterally removing the children from
their habitual residence and crossing international
boundaries in search of a more sympathetic court to arbitrate
custody related disputes. Miller v. Miller, 240 F.3d
392, 398 (4th Cir. 2001). The Sixth Circuit Court of Appeals
has explained that these goals are aimed at:
situations where one parent attempts to settle a difficult
family situation, and obtain an advantage in any possible
future custody struggle, by returning to the parent's
native country, or country of preferred residence . . . .
Under such circumstances, the Hague Convention is clearly
designed to insure that the custody struggle must be carried
out, in the first instance, under the laws of the country of
habitual residence . . . .
Friedrich v. Friedrich, 983 F.2d 1396, 1402-03 (6th
Cir. 1993). To further the goals of the Hague Convention,
courts are called on to preserve the status quo-the return of
the child to his home country for further proceedings.
Miller, 240 F.3d at 398. To that end, "the
return remedy does not alter the pre-existing allocation of
custody rights between parents; the Convention generally
leaves ultimate custodial decisions to the courts of the
country of habitual residence." Alcala v.
Hernandez, 826 F.3d 161, 169 (4th Cir. 2016).
12 of the Hague Convention sets forth a "general rule
that where appropriate proceedings are commenced within one
year of a child being wrongfully removed, a court 'shall
order the return of the child forthwith.'"
Id. However, "the return remedy is not
absolute." Lozano v. Montoya Alvarez, 572 U.S.
1, 5 (2014). The Hague Convention "provides a limited
number of narrow exceptions to the general rule of
return." Alcala, 826 F.3d at 169. For example,
Article 12 of the Hague Convention permits a court to decline
return if "it is demonstrated that the child is now
settled in its new environment." Hague Convention, Art.
12. A court "may also refuse to order the return of the
child if it finds that the child objects to being returned
and has attained an age and degree of maturity at which it is
appropriate to take account of its views." Id.
at Art. 13.
to setting forth its findings of fact and conclusions of law,
the Court lauds the parties and lawyers involved in this
case. Counsel for both parties, a mediator, and a guardian ad
litem have all put countless hours of work into this case
without receiving any remuneration. The Court is incredibly
grateful to all of the lawyers involved in this case, for
they have done an outstanding job and serve as a benchmark of
the type of pro bono service and professionalism that all
lawyers should strive to achieve. Indeed, the parties have
received representation that rivals that of a multimillion
dollar commercial dispute. Moreover, the parties have
admirably complied with all court orders in this case and
have made a good faith effort to resolve the case without
Hague Convention cases require courts to undertake the
unenviable task of determining whether to return a child to
another country and necessarily removing him from residence
with one of his parents. Often, these cases involve a
malicious abduction undertaken by a parent with ulterior
motives. In contrast, this case involves two loving parents
that simply want custody of their minor son. This Court,
however, is not empowered to make a custody determination.
Instead, the Court must interpret and apply an international
treaty, which has been ratified and codified by federal law.
if this Court were making a custody decision militated by the
best interests of the child, the decision might well be very
different from the one announced herein. Accordingly, the
Court issues this Order with a heavy heart, with full
knowledge of the significant ramifications it has for both
parents and their minor son. With these prefatory remarks in
mind, the Court turns to the findings of fact and conclusions
Father filed his Hague Convention application in Mexico on or
about April 24, 2017.
June 26, 2018, the Mexican Central Authority certified that
Child's removal from Mexico was wrongful.
Father retained pro bono counsel and filed a
Verified Emergency Petition and ex parte Motion for a
Temporary Restraining Order ("TRO") on July 16,
2018, in the District of South Carolina. ECF Nos. 1, 7.
July 17, 2018, the Court held an ex parte telephone
conference and indicated that it would issue an expedited TRO
prohibiting Respondent Yadira Del Carmen Sanchez
("Mother") from removing the Child from the
District of South Carolina pending a preliminary injunction
hearing. ECF No. 13.
Court held a preliminary injunction hearing on July 24, 2018.
ECF No. 17. Mother was present at the hearing with the Child.
At the conclusion of the hearing, the Court converted the TRO
to a preliminary injunction, continuing the prohibition on
Mother removing Child from the District of South Carolina.
ECF No. 17. On July 27, 2018, the Court issued a written
order memorializing its findings. ECF No. 21.
July 26, 2018, the Court appointed Elliott B.
Daniels and Susan O. Porter, both of Murphy and
Grantland, P.A., to represent Mother in this matter. ECF No.
After appointing Mr. Daniels and Ms. Porter, the Court held a
telephone conference with counsel on August 7, 2018, in order
to discuss scheduling issues. ECF No. 22.
Following the entry of a consent scheduling order, the Court
appointed Richard Whiting as a Guardian ad Litem
("GAL") for the Child and directed him to prepare a
final report prior to the trial in this matter. ECF No. 26.
parties participated in mediation on September 12, 2018, and
made a good faith effort to resolve the case, although the
mediation was ultimately unsuccessful.
September 26, 2018, Father filed a Motion in Limine and
Objections to the GAL's report, seeking to exclude a
variety of evidence contained in the report. ECF No. 37.
parties each submitted proposed Findings of Fact and
Conclusions of Law to the Court prior to trial. The parties
agreed that the submissions would be ex parte so as not to
reveal any trial strategy.
Court held a bench trial on October 4 and 5, 2018, in
Columbia, South Carolina. Mother was present in the
courtroom, and Father was present via teleconference from
Mexico. At the beginning of trial, the Court granted in part
and denied in part Father's Motion in Limine.
Essentially, the Court held that it would consider the
factual findings in the GAL's report to the extent
appropriate under the Hague Convention. However, the Court
explicitly acknowledged that it was not making a best
interests of the child determination, and, thus, the
GAL's report would not be considered in the manner
typical to family court proceedings.
During the two day trial, each party presented witnesses,
and, at the conclusion of the trial, the Court met with the
Child in chambers without the parties or counsel
present. After the bench trial, the parties were
provided with a copy of the transcript from the Court's
in-chambers meeting with the Child.
November 2, 2018, the Court reconvened the parties and heard
closing arguments; the parties then submitted proposed
written Findings of Fact and Conclusions of Law. During this
hearing, the Court denied Father's Motion for Directed
Verdict, which was made during trial. ECF No. 53.
Findings of Fact
Prior to trial, the parties entered into a joint stipulation
as to several factual issues, which are set forth below.
Father is the father of the Child and Mother is the mother of
Child. ECF No. 40 at 1.
Child was born in Charleston, South Carolina, on March 17,
2006. Id. He is a dual-citizen of Mexico and the
United States. Id.
Father is a Mexican citizen and resident. Id.
Mother was born in Mexico; has been a Lawful Permanent
Resident of the United States since August 19, 1997; and is a
resident of Richland County, South Carolina, where she
presently resides with the Child. Id.
Child resided for some time in South Carolina from his birth
in 2006 until he began residing in the state of Hidalgo,
Mexico, with Father. Id. Although the circumstances
of Child's initial move from the United States to Mexico
with Father are in dispute, the parties agree that the Child
lived exclusively in Mexico from the time Child began
residing in Mexico until approximately November 2016.
Id. at 1-2.
purposes of the "habitual residence" requirement
within the meaning of the Hague Convention, until Child
traveled from Mexico to the United States with Mother on or
about December 1, 2016, Child was a "habitual
resident" of Mexico. Id. at 2.
purposes of the "exercising custody rights"
requirement within the meaning of the Hague Convention,
Father and Mother had sufficient rights of custody under
Hidalgo and Mexican law as that term is used under the Hague
Convention and ICARA. Id. Thus, Father was
exercising his custody rights within the meaning of the Hague
Convention prior to the time Child traveled with Mother from
Mexico to the United States on or about December 1,
Evidence Presented at Trial
parties do not dispute that Father and Mother were married in
the United States in 2005 while living in Charleston County,
South Carolina. They have never been formally divorced.
After the Child's birth, Father and Mother traveled to
Mexico with the Child in 2006. For approximately four months,
the family lived together in Zacualtipán de
Ángeles, Hidalgo, Mexico.
Thereafter, Mother and the child traveled to North
Charleston, South Carolina. For a period of time while Father
remained in Mexico, the Child lived with Mother and her
parents in the North Charleston area. In 2008, Father
returned to North Charleston, South Carolina. At that time,
Mother was in a relationship with another man and was
pregnant with his child.
After Father returned to North Charleston, he and Mother
lived apart but shared the care and custody of Child. More
specifically, Child would stay with Mother for a few days and
then go to stay with Father for a few days. This arrangement
continued for a short while until Mother fell on ...